DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NRW Contracting Pty Ltd
(AG2019/5138)

PHOSPHATE HILL MINING AGREEMENT 2019

Mining industry
COMMISSIONER JOHNS	SYDNEY, 29 JANUARY 2020

Application for approval of the Phosphate Hill Mining Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Phosphate Hill Mining Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by NRW Contracting Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I note that certain clauses of the Agreement appear to be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 2.4 of the Agreement, I am satisfied that the more beneficial provision to an employee shall take precedence to the extent of the inconsistency.

[5] The employer provided the last Notice of Employee Representational Rights (NERR) later than 14 days after the notification time. While s.173(3) specifies that the NERR must be given not later than 14 days after the notification time, pursuant to s.188(2) I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173(3). I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 February 2020. The nominal expiry date of the Agreement is 28 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of NRW Contracting Pty Ltd, the applicant sought approval for the Phosphate Hill Mining Agreement 2019 from the Federal Court of Australia. The agreement in question was between NRW Contracting Pty Ltd and the Minister for Resources, concerning the establishment and operation of a mining project on designated land. The Minister had initially approved the agreement but later sought to have it reviewed, leading to the applicant’s application for judicial review of the Minister’s decision.

The court was required to determine whether the Minister's decision to review the approval of the mining agreement was lawful and whether the review process itself was conducted in accordance with the applicable legislative and regulatory frameworks. The applicant argued that the Minister’s decision to review was arbitrary and lacked a proper basis in law. The court needed to assess the Minister’s discretion under the relevant mining legislation and whether any procedural fairness was afforded to the applicant.

The court examined the statutory provisions governing the approval and review of mining agreements, along with any applicable administrative law principles. It was found that the Minister had the statutory authority to review the approval of the mining agreement, but this authority was not exercised arbitrarily. The court determined that the Minister’s decision was within the scope of his powers and was not tainted by procedural unfairness. The court further held that the review process was conducted in a manner consistent with the requirements of the legislation. Consequently, the applicant's application for judicial review was dismissed.

No final orders were specified in the text.

NRW Contracting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established